At the center of the Silicon Valley, San Jose was the likely place where the Public Records Act would slam into the Blackberry and iPhone phenomena. 

San Jose’s new disclosure policy will require the messages sent on these smart phones to be available for public review.

The proposal isn’t groundbreaking. Some have argued that this is what the law has intended all along. 

If a Councilmember or the Mayor (or their staff) receives a text message or other form of communication during the Council meeting from a lobbyist or interested party, he or she would have to disclose that communication prior to the vote being cast. San Jose Councilmembers already disclose contact with lobbyists prior to voting under our existing disclosure rules.

The records requirements for personal devices, emails and texts apply to messages sent or received regarding city business. The goal is to prevent the use of personal email accounts to circumvent the public nature of an official city account. The public would not have access to everything on the person’s personal device, computer, or in their personal account. Instead, the official would provide any retained records should a public records act request be made.

The Council is expected to vote on this on February 9. The staff report presented is online here.

Here are some of the issues that are troubling: What if the public official receives the information and has it immediately deleted so that no record exists? 

The information has been transferred but the public has no record to inspect.  This policy doesn’t mean much unless it comes with a policy to keep these records.

We are impressed with the efforts made by San Jose but think it brings up more questions than answers.

Certainly the use of privately owned and operated devices can be the subject of great debate regarding access to public records.  It’s a slippery slope … Where does the public’s right to know infringe on the personal property right and privacy of the employee or official?

The law on this matter is unclear and will end up being decided on a test case.  It will all depend on one PRA request made to a government employee who decides that they do not want to give up the information due to privacy or personal property reasons. 

It should be interesting to see how the battle of privacy versus public rights plays out.

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